Prosecutors who refused to present any evidence against a defendant at trial because of unavailable witnesses can’t get a do-over, the U.S. Supreme Court has ruled.

The court granted certiorari on Tuesday and ruled against the prosecution in a summary reversal (PDF) of the Illinois Supreme Court.

The U.S. Supreme Court said the double jeopardy clause barred retrial of the defendant, Esteban Martinez, who had been accused of aggravated battery and mob action. As a result, the state’s appeal, aimed at achieving a retrial, was also barred, the Supreme Court said.

Martinez’s two alleged victims had ignored repeated subpoenas to appear in court, and things were no different after a judge refused to grant any additional continuances in May 2010. The judge told prosecutors they could have the jury sworn or they could move to dismiss the case.

Prosecutors told the judge they opted for a different strategy: They would not be participating in the case.

“Very well,” the trial judge replied. “We’ll see how that works.”

The jury was sworn. The prosecution did not present an opening statement and did not call a first witness. At that point, the judge granted a defense motion for a directed verdict of acquittal, and prosecutors appealed.

The Illinois Supreme Court ruled double jeopardy never attached because Martinez “was never at risk of conviction.” The Supreme Court reversed, noting previous holdings that jeopardy attaches when the jury is empaneled and sworn.

The remaining question, the per curiam opinion said, is whether the jeopardy ended in such a manner that the defendant may not be retried. In this case, the court said, the directed verdict of acquittal was “a textbook acquittal: a finding that the state’s evidence cannot support a conviction.”

Had the prosecutor accepted the judge’s invitation to dismiss the case, the double jeopardy clause would not have barred recharging Martinez, the court said.